Wind turbine height increase declared unlawful

Reversing a previous ruling, the Court of Appeal has upheld a Carmarthenshire resident's challenge to an inspector's decision to allow the height of two wind turbines to be increased.

The council had granted permission for the turbines for an operational period of 25 years. The description of development referred to a maximum height of 100 metres. A condition had been imposed requiring that the development should be carried out in accordance with various plans and documents, one of which showed a typical wind turbine elevation with a maximum height to blade tip of 100 metres.

The developer subsequently applied under section 73 of the Town and Country Planning Act 1990 to vary the terms of the condition to permit a maximum height to blade tip of 125 metres. Permission was refused but on appeal (DCS Number 200-007-313) the inspector decided that the variation was acceptable. In so doing, she removed reference to the height of the turbines from the description of the development but imposed a new condition referring to a plan showing a maximum turbine height of 125 metres.

In the High Court, the claimant argued that the inspector had no power under section 73 to amend the description of development but could only decide whether permission should be granted with a new set of conditions. He asserted that the inspector had in effect granted permission for an entirely new scheme that was materially different to the one approved by the council.

Rejecting this challenge, Sir Wyn Williams ruled that the point had not been raised by any party during the appeal process and the inspector could not be faulted for not dealing with it. The judge concluded that the challenge was based on an "over-technical" and "inflexible" approach to the inspector’s powers. In his view, she had undertaken a meticulous assessment of the potential effects and had properly understood whether allowing the appeal would fundamentally alter the original permission.

In the Court of Appeal, Lord Justice Lewison held that the High Court ruling did not deal with whether the inspector’s decision could lawfully be made under section 73. In his opinion, there was a distinction between the "operative part" relating to grant of permission and any conditions imposed thereon. It was not permissible under a section 73 application to vary the original description of development, he found, since no such power existed under the act.

The court concluded that the inspector had acted unlawfully in omitting reference in the description of development to two turbines with a height of 100 metres, in direct conflict with the revised plans showing turbines up to 125 metres in height. It observed that the developers should have either applied for a non-material amendment under section 96A of the act or submitted a new planning application, either of which could have secured their desired result.

Finney v Welsh Ministers, Carmarthenshire County Council and Energiekontor (UK) Ltd

Date: 29 October 2019

Ref: [2019] EWCA Civ 1868

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